Carrie Cordero, Georgetown’s Director of National Security Studies and a former Justice Department official, writes in with these thoughts on the AP subpoenas controversy and background law:
In light of the hysteria over reports that the Department of Justice subpoenaed AP records during the course of a leak investigation, it might be useful to step back and keep in mind what the law actually is when it comes to telephone records (also known as toll records and dialed digits), regardless of whose records they are.
In a nutshell: there is no right to privacy in dialed digits, under longstanding law. The relevant foundational cases go back to Smith v. Maryland, 442 U.S. 735 (1979), which addressed whether a pen register was a search under the 4th amendment, and considered whether there is a legitimate expectation of privacy in dialed digits. The court’s answer to that question was “no.” Smith cited to a case a few years prior, U.S. v. Miller, 425 U.S. 435 (1976), which stands for the proposition that there is no legitimate expectation of privacy in records voluntarily turned over to a third party. (Miller concerned the production of bank records.) These cases are old hat to a lot of Lawfare readers. But when we discuss them in class, my law students are generally shocked, as they have a much different understanding of what the law “should be” in relation to “private” communications; so many of their own, of course, taking place on digital devices.
Had the records request by subpoena been directed at anyone other than journalists, it would be wholly unremarkable: relevant records without constitutional privacy protection were sought in an authorized investigation, pursuant to a subpoena which itself covered only a limited period of time and applied only to specific telephone numbers. No news there; it happens all the time in criminal investigations. What makes these subpoenas of interest, of course, is that the information was requested from news media. However, there is no indication that news media personnel are subjects or targets of the investigation; reports say only that they have information relevant to an authorized investigation. The Department of Justice has heightened approval processes for requesting third party records from a media organization, as Alan explained in an earlier post.
So there’s the past and present. In addition to renewed interest in media shield legislation, the future could get more interesting when it comes to third party records and privacy. In the AP case, it’s sort of a throwback that the subpoena concerned old fashioned telephone records. Given the volume of communications that now take place over digital devices such as emails and text messages—as opposed to the old fashioned telephone (or the somewhat quaint “cell phone”)—legislators may use the AP story as justification for adding additional protections to information such as dialed digits, or “to/from” information, in the possession of third parties.
Legislators already have taken steps in this direction. During debate on the FISA Amendments Act renewal legislation last year, Sen. Rand Paul introduced SA 3436, which he called the “Fourth Amendment Preservation and Protection Act of 2012.” In short, this little-noticed (and ultimately unsuccessful) amendment would have required the government to obtain a probable cause warrant before collecting third party records. The approach was beyond impractical—its adoption would bring criminal investigations of all sorts of violations to a grinding halt—but the underlying principle, that third party records should be given more protection, has the potential to appeal both to liberal privacy advocates and to conservative libertarians. This potential political alignment suggests that third party record “privacy” could be an area of future legislative initiative.
A final word on the leaks issue. Politically, there’s been a lot made of the fact that this Administration’s Justice Department is aggressively pursuing leak prosecutions. It’s likely that the tension between national security and law enforcement officials pursuing leakers, and the news media pushing back, will remain. Leaks are unlawful. And they can be damaging. On the other hand, journalists view leakers as important sources of information about government activities. Perhaps this Administration’s pursuit of leaks investigations provides a little hope that at least some national security matters remain insulated from political influence: leaks of classified information are a national security problem, no matter which party occupies the White House.